Judge Delivers Bombshell Decision in James Comey’s Case — “The Court Finds...”
The Justice Department is urging a federal judge to reject former FBI Director James Comey's effort to dismiss criminal charges over his 2025 Instagram post showing seashells arranged to read '86 47,' arguing that the disputed meaning of the message should be tested with evidence rather than resolved in Comey's favor before trial.
The government's response was filed late Aug. 18 in the U.S. District Court for the Eastern District of North Carolina and became public in news reports on Aug. 19. It is not a new filing from Aug. 25, but it remains the government's most detailed public defense of the prosecution as the case moves toward an October trial date.
Comey was indicted by a federal grand jury on April 28 on two felony counts arising from the May 15, 2025 post. One count alleges that he knowingly and willfully made a threat to take the life of or inflict bodily harm on President Donald Trump in violation of 18 U.S.C. Section 871. The second alleges that he transmitted a threatening communication in interstate commerce in violation of 18 U.S.C. Section 875(c).
The indictment describes the image as a serious expression of intent to harm Trump when viewed by a reasonable recipient familiar with the circumstances. Comey has pleaded not guilty in substance, denied any violent intent and moved to dismiss the case before trial on First Amendment and other constitutional grounds.
The central disagreement is not simply over what the slang term '86' can mean. It is over whether the photograph, its context and Comey's state of mind can legally amount to a 'true threat,' a category of threatening speech that falls outside First Amendment protection.
Comey's lawyers argue the answer is no as a matter of law.
In their July 27 motion to dismiss, they said the phrase '86 47' was political speech calling for Trump, the 47th president, to be removed or opposed rather than harmed. They emphasized ordinary dictionary definitions of '86' such as to throw out, get rid of or refuse service, and argued that the slogan had already appeared on protest signs and merchandise before Comey's post.
The defense also argued that even if an unusual violent meaning could be imagined, a reasonable observer would still understand Comey's post as political hyperbole rather than a personal threat by Comey to commit violence.
Prosecutors sharply disagree.
In their Aug. 18 response, they argued that Comey's motion asks the court to decide a fact-heavy question without allowing the government to present the surrounding evidence it says gives the post a threatening meaning.
The government framed the dispute as a question of institutional role: should a judge rule before trial that the communication could not be a true threat, or should a jury hear the evidence and decide what the message meant and what Comey understood when he posted it?
Prosecutors wrote that no authority supports what they called an effort to 'short-circuit' the proceedings before the government presents its case. They also argued that there is 'no serious dispute' that an objective viewer could interpret the phrase as a reference to killing Trump, even though that is not the only possible meaning of the number 86.
That assertion is one of the most contested parts of the government's position.
Merriam-Webster and other standard references commonly define '86' as meaning to throw out, get rid of or refuse service. Some sources also recognize a less common meaning involving killing. The fact that a word or number can carry multiple meanings does not by itself answer whether Comey's specific post was a criminal threat.
Context therefore matters to both sides.
The Justice Department says the context includes the heightened threat environment surrounding Trump after assassination attempts and other threats, Comey's experience as a former FBI director and federal prosecutor, the reactions of people who saw the post, and evidence about Comey's own understanding of how the phrase might be interpreted.
Prosecutors have also cited Comey's then-upcoming novel, 'FDR Drive.' The book involves a far-right media personality whose rhetoric is alleged to inspire followers to target political enemies. The government argues that the novel's themes undermine Comey's claim that he was unaware coded political language could be understood as encouraging violence.
The prosecution has gone further, suggesting that publicity from the controversy may have benefited Comey's book sales and that this possible financial incentive is part of the context a jury should hear.
Comey's lawyers reject that theory and have portrayed the use of his fiction as speculative and constitutionally troubling. PEN America, a free-expression organization, has also criticized prosecutors for relying on a novelist's fictional work as evidence of criminal intent.
The existence of the novel does not itself prove Comey intended a threat. The government is presenting it as circumstantial evidence that may bear on his knowledge and motives, while the defense argues that drawing criminal inferences from fictional writing risks punishing protected expression.
Another important factual dispute concerns how the shells came to be arranged on the beach.
Comey has said he encountered the formation while walking on a North Carolina beach and photographed it rather than arranging the shells himself. Prosecutors have questioned that account and pointed to the location and other evidence as reasons a jury should be permitted to assess credibility.
The defense has accused investigators of repeatedly failing to find evidence that Comey created the display or intended violence. In separate motions, his lawyers have also alleged investigative misconduct, including improper surveillance and omissions or inaccuracies in government applications and investigative documents. The Justice Department has disputed those claims.
The legal standard is more demanding than simply asking whether somebody felt alarmed by the post.
The Supreme Court has long distinguished true threats from protected political hyperbole. In the 1969 case Watts v. United States, the Court reversed the conviction of an antiwar protester whose statement about President Lyndon Johnson was deemed crude political hyperbole rather than a true threat.
More recently, in Counterman v. Colorado in 2023, the Supreme Court held that the First Amendment requires proof that a defendant had some subjective understanding of the threatening character of the communication. The Constitution requires at least recklessness - meaning the speaker consciously disregarded a substantial risk that the communication would be viewed as threatening violence.
That rule is particularly relevant to Comey's second count under Section 875(c), which the indictment expressly alleges was committed while Comey consciously disregarded a substantial risk that the communication would be viewed as threatening violence.
The first count, involving threats against the president under Section 871, also contains its own statutory mental-state requirement: the government alleges Comey acted knowingly and willfully.
Those requirements explain why the case cannot be reduced to a dictionary fight over the meaning of '86.' Even if the government proves that some reasonable viewers understood the phrase as violent, it must still satisfy the applicable mental-state requirements and prove the charged offenses beyond a reasonable doubt.
Comey's deletion of the post is therefore being used in opposite ways by the two sides.
Comey has said he removed it after learning that some people associated the numbers with violence. He said at the time that he had understood the shells as a political message, that it had not occurred to him the phrase could be interpreted as a call for violence and that he opposes violence.
The government argues that the deletion and subsequent statements show Comey recognized the phrase was capable of conveying a violent meaning. His lawyers argue the same sequence supports his account that he learned of that interpretation only after posting it and promptly removed the image once the issue was brought to his attention.
Neither inference is automatically conclusive.
A person can delete controversial speech because it was misunderstood without having originally intended a threat. Conversely, a prosecutor may argue that post-publication conduct is one piece of evidence from which a jury can infer what the defendant understood earlier. The weight of that evidence is precisely the type of issue the government says should be resolved at trial.
The case is also politically charged because Trump and Comey have been adversaries for nearly a decade.
Comey led the FBI from 2013 until Trump fired him in May 2017. His tenure included the early FBI investigation into Russian interference in the 2016 election and possible links between Trump campaign associates and Russia. Special counsel Robert Mueller later documented sweeping Russian interference but did not establish that the Trump campaign conspired or coordinated with the Russian government in its election-interference operation.
Trump has repeatedly denounced Comey and called for him to be investigated or prosecuted. Comey's defense says that history demonstrates the current case is a vindictive prosecution designed to punish a prominent political critic.
The Justice Department's Aug. 18 filings separately rejected the vindictive-prosecution claim.
Prosecutors argued that Comey has not shown that the Eastern District of North Carolina lawyers who secured the current indictment acted out of personal animus or were improperly directed to bring charges. They said the prosecutor who brought the case did not face pressure to indict Comey and had only limited contact with senior Justice Department leadership before the grand-jury presentation.
Comey's lawyers dispute that characterization and point to Trump's repeated public demands for action against him as evidence that ordinary prosecutorial independence cannot be assumed in this case.
The judge will have to decide whether that political history, together with evidence about how the investigation unfolded, is sufficient to justify dismissing the case before trial or granting other relief.
This is the second criminal prosecution brought against Comey during Trump's second term, but the two cases should not be conflated.
The first case was filed in September 2025 in the Eastern District of Virginia and accused Comey of making a false statement to Congress and obstructing a congressional proceeding. A federal judge dismissed that indictment in November 2025 after concluding that interim U.S. Attorney Lindsey Halligan, who obtained and signed the charges, had been unlawfully appointed.
That dismissal did not decide whether Comey had committed the alleged false-statement or obstruction offenses on the merits. It turned on the legality of the prosecutor's appointment. The Justice Department appealed the ruling, and the dispute has continued separately from the North Carolina threat case.
The current prosecution was brought by a different U.S. attorney's office and by a new grand jury in North Carolina. DOJ has emphasized that distinction in rejecting Comey's claim that the seashell case is merely a continuation of an improper campaign to prosecute a Trump opponent.
The prosecution has nevertheless faced its own unusual developments.
Assistant U.S. Attorney Matthew Petracca, initially identified as the lead prosecutor and the lawyer who signed the indictment, was removed from the case docket in late May. Another federal prosecutor, Timothy Severo, took over. Court filings did not identify misconduct by Petracca or say that his departure changed the validity of the indictment.
The case is assigned to U.S. District Judge Louise Wood Flanagan. Comey's arraignment is scheduled for Sept. 30 in New Bern, North Carolina, and the jury trial is currently set to begin Oct. 21 if the indictment survives the pending motions.
Before then, Flanagan must address a series of defense challenges that go beyond the true-threat motion.
Comey's lawyers have argued that the prosecution is selective and vindictive, that the investigation involved government misconduct and that the indictment targets constitutionally protected speech. The Justice Department has opposed those efforts and maintains that a grand jury found probable cause after reviewing the evidence.
A grand-jury indictment, however, is not a finding of guilt. The Justice Department itself noted in announcing the charges that Comey is presumed innocent unless and until prosecutors prove the case beyond a reasonable doubt.
The most important question raised by the latest filing is therefore narrower than the political rhetoric surrounding the case.
DOJ is not asking the court to declare Comey guilty now. It is arguing that the indictment and the evidence it plans to present are sufficient to allow a jury to decide whether the post was a true threat and whether Comey possessed the required mental state.
Comey is asking the judge to stop the prosecution before that stage, arguing that even with the government's proposed context, the seashell image remains protected political expression and that allowing the case to proceed would chill speech far beyond his own post.
Both positions have significant consequences.
If courts allow criminal threat cases to proceed whenever an ambiguous political slogan can be given a violent interpretation, critics warn that harsh political rhetoric could become vulnerable to selective prosecution depending on who controls the Justice Department.
If courts dismiss too early despite evidence that coded language was knowingly used to communicate a serious threat, prosecutors argue that public officials and others could be left without effective protection against modern forms of intimidation that rarely arrive as explicit statements of intent.
That tension is why true-threat doctrine requires both context and a culpable state of mind.
It is also why the government's claim that an objective viewer could read '86 47' as 'Kill President Trump' is only part of what prosecutors would have to establish at trial. The First Amendment does not permit conviction solely because a message can be interpreted in the most alarming possible way.
The prosecution must prove the elements Congress wrote into the statutes and satisfy constitutional protections for speech. Comey's defense, meanwhile, must persuade the judge either that the indictment cannot legally meet those standards or that other constitutional defects justify dismissal before a jury hears the case.
As of Aug. 25, no judge has ruled that Comey's post was a criminal threat, and no jury has found him guilty.
What has happened is that the Justice Department has now placed its most detailed theory on the record: the seashell post, viewed alongside Comey's background, the political environment, reactions to the image and other surrounding evidence, was sufficiently threatening to justify a trial.
Comey's answer is equally clear: '86 47' was opposition to Trump, not a threat to kill him, and the government is trying to criminalize ambiguous political speech because of the identity of the speaker and the president he criticized.
The next decisive step belongs to the court.
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Judge Flanagan must determine which issues can properly be resolved as legal questions before trial and which require factual findings by a jury. If the case proceeds, the October trial will test not only the government's evidence against one former FBI director but also how the modern law of true threats applies to coded, ambiguous and highly partisan speech on social media.
